Handling Cases

Involving
Self-Represented
Litigants
A BENCHGUIDE FOR JUDICIAL
OFFICERS
JANUARY 2007

A Benchguide for Judicial Officers

January 2007

stated, By undertaking a collateral investigation [the judge] abdicated

his responsibility for deciding the parties dispute on pleadings and
evidence properly brought before him. 29 Cal.3d 615, at 632.
Denying rights of self-represented litigants
The Supreme Court and the Commission on Judicial Performance have,
on numerous occasions, disciplined judges or removed them from
office for their denial of the rights of unrepresented litigants appearing
before them.
In Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d
297, 787 P.2d 591 [267 Cal.Rptr. 293], the Supreme Court removed a
judge from office for, among other things, rudeness to pro per litigants
in criminal cases.
In McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d
512, 526 P.2d 268 [116 Cal.Rptr. 260], the court censured a judge for,
among other things, bullying and badgering pro per criminal
defendants.
In Inquiry Concerning Judge Fred L. Heene, Jr., No. 153 (Commission
on Judicial Performance 1999), the commission censured a judge for,
among other things, not allowing an unrepresented defendant in a
traffic case to cross-examine the police officer and failing, in several
cases, to respect the rights of unrepresented litigants.
In Inquiry Concerning a Judge, No. 133 (Commission on Judicial
Performance 1996), the commission censured a judge for, among
other things, pressuring self-represented litigants to plead guilty,
penalizing a self-represented litigant who exercised his right to trial,
and conducting a demeaning examination of an unrepresented litigant.
A trial judge may not deny the parties their procedural due process
rights by preempting their ability to present their case. In Inquiry
Concerning Judge Howard R. Boardman, No. 145 (Commission on
Judicial Performance 1999), the commission concluded that Judge
Boardman committed willful misconduct by depriving the parties of
their procedural rights in King v. Wood. The case, filed by a selfrepresented litigant, involved a quiet title action concerning a home.
The counsel for the opposing party was trying his first case. Judge
Boardman called the case for trial and, telling the parties that he was
proceeding off the record and without swearing the parties, asked
them to tell him what the case was about. The self-represented litigant
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spoke, followed by the lawyers opening statement and his clients

statement. The judge alternated asking the parties questions. He
reviewed documents presented to him. After asking if either party had
anything else to add, he announced that he was taking the case under
submission and asked the attorney to prepare a statement of decision
and judgment, which the judge later signed. The commission
concluded that Judge Boardman, on his own initiative and without
notice to or consent by the parties, followed an alternative order in a
misplaced effort to conserve judicial resources. It noted that the
parties were denied their rights to present and cross-examine
witnesses and to present evidence.
Limitations on a trial judges accommodation of a self-represented
litigant
What accommodation might be inappropriate for a trial judge to make?
The limitation articulated in federal case law is whether the
accommodation would cause prejudice to the opposing side.
However, it appears that prejudice is confined strictly to instances in
which the judges actions led to a decision contrary to that dictated by
the facts and the law of the case. For instance, a judges helping a
party to introduce evidence essential for recovery would not be
prejudicial to the other side, since the judges action resulted in
evidence showing that the other side was not entitled to prevail.
An informal ethics opinion by the California Judges Association (20012002 Informal Response #62 (Gutierrez) Nov. 30, 2001 addresses the
issue of whether, in a small claims court proceeding, it is proper for a
judge to suggest that the plaintiff may want to ask for medical costs or
other damages in addition to the requested compensation for vehicle
damages. Section 1.3 of the Judges Benchbook describes the judges
role during small claims proceedings. Specifically the benchbook
states: the judge cannot sit back and be a passive arbiter. . . . The
judge should see that, when appropriate, issues such as the statute of
frauds and limitations or other special statutory requirements are
raised even though the parties fail to do so. This is particularly true of
statutes designed to protect consumers, because litigants are often not
aware of them. Additionally, the benchbook and benchguide [34,
Small Claims Court] note that the judge has the discretion to
investigate the facts personally. The opinion concludes that
notwithstanding this active role, making a suggestion regarding
additional damages would be improper because it goes beyond
statutes or issues of which litigants are often unaware. Instead, the
suggestion is partisan, not impartial, and amounts to advocacy.
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